The High Courts of India: Composition,

Appointment of Judges and other

Details
The High Courts of India: Composition, Appointment  of Judges and
other Details!
Article 214 says that every State has a High Court operating within its
territorial jurisdiction. But the Parliament has the power to establish a
common High Court for two or more States (Article 231). For Instance,
Punjab and Haryana have a common High Court. Similarly there is one High
Court for Assam, Nagaland, Meghalaya, Manipur and Tripura.

In India, neither the State executive nor the State Legislature has any power
to control the High Courts or two after its Constitution or organisation. It is
only Parliament which can do it. In case of Union Territories the Parliament
may by law extend the jurisdiction of a High Court to or exclude the
jurisdiction of a High Court from any Union Territory, or create a High Court
for a Union Territory.

Thus Delhi, a Union Territory, has a separate High Court of its own while the
Madras High Court has jurisdiction over Pondicherry, the Kerala High Court
over Lakshadweep and Mumbai High Court over Dadra and Nagar Haveli,
the Kolkata High Court over Andaman and Nicobar Islands, the Punjab High
court over Chandigarh.

Composition of High Courts:

(i) Every High Court shall consists of a Chief Justice and such other judges as
the President of India may from time to time appoint.

(ii) Besides, the President has the power to appoint

(a) Additional Judges for a temporary period not exceeding two years, for the
clearance of areas of work in a High Court;

(b) an acting judge, when a permanent judge of a High Court (other than
Chief Justice) is temporarily absent or unable to perform his duties or is
appointed to act temporarily as Chief Justice.

But neither an additional nor an acting Judge can hold office beyond the age
of 62 years (by 15th Amendment) Act age of retirement raised from 60 to 62.

Appointment and Conditions of Office of a Judge of a High Court:

Every Judge of a High Court shall be appointed by the President. In making
the appointment, the President shall consult the Chief Justice of India, the
Governor of the State (and also the Chief Justice of that High Court in the
matter of appointment of a Judge other than the Chief Justice).

Tenure:
A Judge of the High Court shall hold office until the age of 62 years.

Every Judge, permanent, additional or acting, may vacate his office earlier in
any of the following ways; (i) by resignation in writing addressed to the
President; (ii) by being appointed a Judge of the Supreme Court or being
transferred to any other High Court, by the President; (iii) by removal by the
President on an address of both Houses of Parliament (supported by the vote
of 2/3 of the members present) on the ground of proved misbehaviour or
incapacity,. The mode of removal of a Judge of the High Court shall thus be
the same as that of a judge of the Supreme Court.

Salary and Allowances of the Judges:

It is provided that the judges of the High Court shall draw such salaries and
allowances, as the Parliament may by law fix from time to time. In addition
they will also be entitled to receive other prescribed allowances.

By providing the expenditure salaries and allowances the judges shall be

charged on the consolidated fund of State Article 360 (4) (b).These cannot be
reduced except in financial emergency. Nor can the allowances and rights be
varied by Parliament to the disadvantage of a judge during his/her term of
office.

Independence of Judges Ensured:

As in the case of the Judges of the Supreme Court, the Constitution seeks
to maintain the independence of the Judges of the High Court’s by a
number of provisions:
(i) By laying down that a Judge of the High Court shall not be removed,
except in the manner provided for the removal of a Judge of the Supreme
Court (Article 218); (ii) by providing that the expenditure in respect of the
salaries and allowances of the Judges shall be charged on the Consolidated
Fund of the State [Article 202 (3)(d)]; (iii) by specifying in the Constitution
the salaries payable to the Judges and providing that the allowances of a
Judge or his rights in respect of absence or pension shall not be varied by
Parliament to his disadvantage after his appointment (Article 221) except
under a Proclamation of Financial Emergency [Article 360 (4)(b)] (iv) by
laying down that after retirement a permanent Judge of High Court shall not
plead or act in a Court or before any authority in India, except the Supreme
Court and a High Court other than the -High Court in which he had held his
office (Article 220).

Control of the Union over High Court:

The control of the Union over a High Court in India is exercised in the
following matters:
(i) Appointment, (Article 217), transfer from one High Court to another
(Article 222) and removal [Article 217(1)] and determination of dispute as to
age of Judges of High Courts [Article 217 (3)]; (ii) the Constitution and
organisation of High Courts and the power to establish a common High Court
for two or more States (Article 231); and (iii) to extend the jurisdiction of a
High Court to, or to exclude it jurisdiction from, a Union Territory, are all
exclusive powers of the Union Parliament (Article 231).

Jurisdiction of High Courts:

The constitution does not attempt detailed definitions or classification of the

different types of jurisdiction of the High Courts. It was presumed that the
High Court’s which were functioning with well- defined jurisdiction at the
time of the framing of the Constitution would continue with it and maintain
their position as the highest courts in the States.

The Constitution, accordingly, provided that the High Courts would retain
their existing jurisdiction and any future law that was to be made by the
Legislatures.
Besides, the original and appellate jurisdiction, the Constitution vested in
the High Court’s four additional powers:
(1) The power to issue writs or orders for the enforcement of Fundamental
Rights or for any other purpose;

(2) the power of superintendence over subordinate courts;

(3) the power to transfer cases to themselves pending in the subordinate

courts involving interpretation of the Constitution; and

(4) the power to appoint officers.

(a) Original and Appellate Jurisdiction:

The High Courts are primarily courts of appeal. Only in matters of admiralty,
probate, matrimonial, contempt of Court, enforcement of Fundamental Rights
and cases ordered to be transferred from a lower court involving the
interpretation of the Constitution to their own file, they have original
jurisdiction.

The High Courts of Bombay, Calcutta and Madras exercise original civil
jurisdiction when the amount involved exceeds specified limit. In criminal
cases it extends to case committed to them by Presidency Magistrates.

On the appeal side they entertain appeals in civil and criminal cases from
their subordinate courts as well as from their original side. For historical
reasons and as a result of the specific provisions in the Government of India
Act, 1935, no High Court has any original jurisdiction in any matter concern-
ing revenue. In 1950 Constitution removed this restriction.

(b) Power of Superintendence and Transfer:

Every High Court has a power of superintendence over all courts and
tribunals throughout the territory in relation to which it exercises jurisdiction,
excepting military tribunals [Art. 227]. This power of superintendence is a
very wide power in as much as it extends to all courts as well as tribunals
within the State, whether such court or tribunal is subject to the appellate
jurisdiction of the High Court or not.

Further, this power of superintendence would include a revisional jurisdiction

to intervene in case of gross injustice or non-exercise of abuse of jurisdiction,
even though no appeal or revision against the orders of such tribunal was
otherwise available.

However, this jurisdiction of High Court has been taken away in respect of
Administrative Tribunals set up under Article 323A, by the administrative
Tribunals Act. 1985. If the High Court is satisfied that a case pending in a
court subordinate to it involves a substantial question of law as to the
interpretation of the Constitution, it may transfer the case of itself.

After the case has come to the file of the High Court, it may dispose of the
whole case itself, or may determine the constitutional questions involved and
return the case to the court from which it has been withdrawn together with a
copy of its judgement on such question and direct it to dispose of the case in
conformity with such judgement.

The Constitution, thus, denies to subordinate courts the right to interpret the
Constitution so that there may be the maximum possible uniformity as
regards constitutional decisions. It is accordingly, the duty of the subordinate
courts to refer to the High Court a case which involves a substantial question
of law as to the interpretation of the Constitution and the case cannot be
disposed of without the determination of such question. The High Court may
also transfer the case to itself upon the application of the party in the case.

(c) Writ Jurisdiction:
Article 226 of the Constitution empowers every High Court, throughout the
territories in relation to its which exercises jurisdiction to issue to any person
or authority, including in appropriate cases, any Government, within those
territories, directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them,
for the enforcement of any of the Fundamental Rights and for any other
purpose.

The Constitution by Forty-second amendment omitted the provision “for any

other purpose”, but the Forty-fourth amendment has restored it. The
peculiarity of this jurisdiction is that being conferred by the Constitution, it
cannot be taken away or abridged by anything short of an amendment of the
Constitution itself.

Although the Supreme Court and the High Courts have concurrent
jurisdiction in the enforcement of Fundamental Rights, the Constitution does
not confer to the High Court’s the special responsibility of protecting
Fundamental Rights as the Supreme Court is vested with such a power.

Under Article 32 the Supreme Court is made the guarantor and protector, of
Fundamental Rights whereas in the case of High court the power to enforce
Fundamental Rights is part of their general jurisdiction.
The jurisdiction to issue writs under these Articles is larger in the case of
High Court in as much as while the Supreme Court can issue them only
where a fundamental right has been infringed, a High Court can issue them
not only in such cases but also where an ordinary legal right has been
infringed, provided a writ is a proper remedy in such cases, according to
well-established principles.

(d) Court of Record:
The High Court is a court of record and has all the powers of such a court
including the power to punish for contempt of itself. The two characteristics
of a court of record are that the records of such a Court are admitted to be of
evidentiary value and that they cannot be questioned when produced before
any court and that it has the power to punish for contempt of itself. Neither
the Supreme Court nor the Legislature can deprive a High Court of its power
of punishing contempt of itself.

Officers and Servants and the Expenses of High Courts:

Article 229 of the Constitution says:
(i) Appointments of officers and servants of a High Court are made by the
Chief Justice of the High Court.

(ii) Subject to the provisions of any law made by the Legislature of the State,
the conditions of service of Officers and servants of a High Court shall be
such as may be prescribed by the rules made by the Chief Justice of the High
Court.

(iii) The administrative expenses of the High Court including all salaries,
allowances, etc. are charged upon the Consolidated Fund of the State.